Officer. The amendments of Part 201 in Procedures of the Post Office Department published in the Federal Register on Friday, May 30, 1958, is irrelevant to our question. The regulations considered in Pinkus v. Reilly, D.C.N.J.1957, 157 F.Supp. 548, were not those which governed the administrative proceedings in the present case, in which latter the administrative complaint was not filed until May 27, 1959. I therefore conclude that the fraud order is valid if the administrative record contains substantial evidence supporting the charges which resulted in that order.
The Evidence Before the Examiner
The Examiner found that the plaintiff sells a product called Tigron and in its sales efforts sends through the United States mails, to persons who have not previously requested it, circular matter soliciting the purchase of its product and making the following representations with respect thereto:
(a) that the use of Tigron as directed will reactivate lost sex energy no matter what age, i.e., that the product will overcome sexual impotency in users regardless of age;
(b) that, by using Tigron, old and played-out persons will be able to enjoy all of the benefits of youth once again, i.e., that the product will restore full youthful energy and stamina to users, regardless of their former condition or the cause of that condition;
(c) that the product will make the memories of lost youthful energy and sex energy a reality again for any user;
(d) that the results of the use of the product are positive, i.e., certain;
(e) that the product contains the missing vital needs of any man or woman lacking in energy and sex energy, i.e., that the ingredients contained in the product are regularly missing from or inadequate in the diet of such persons;
(f) that Tigron is a most important scientific discovery for the treatment of the conditions for which it is sold, i.e., that the product's ingredients are new and their therapeutic effects have heretofore been unknown to medical science. The testimony before the Examiner, coupled with the admissions of the plaintiff, amply support the Examiner's finding that the foregoing representations respecting the plaintiff's product were both false and fraudulent and made by the plaintiff with intent to deceive those whose purchase of plaintiff's product was solicited by the mailed matter. I have read the transcript of the testimony presented to the Examiner in the administrative proceeding. I do not propose to review that testimony in this opinion, but I conclude that the record discloses substantial evidence supporting the respective decisions of the Hearing Examiner and of the Judicial Officer that plaintiff is engaged in conducting a scheme for obtaining money through the mails by means of false representations within the contemplation of 39 U.S.C.A. § 259. I could reverse the decision of the Judicial Officer only if I found it unsupported in the record. I have found it amply supported there. Having concluded that the administrative record discloses substantial evidence supporting the determination of the Judicial Officer, I could not substitute my judgment for his. Farley v. Heininger, 1939, 70 App.D.C. 200, 105 F.2d 79, certiorari denied 308 U.S. 587, 60 S. Ct. 110, 84 L. Ed. 491; Leach v. Carlile, 1921, 258 U.S. 138, 42 S. Ct. 227, 66 L. Ed. 511; Reilly v. Pinkus, 1949, 338 U.S. 269, 70 S. Ct. 110, 94 L. Ed. 63. In Bio-Genics, supra, claims that the plaintiff's product would restore sexual virility to impotent men and otherwise accomplish sexual rejuvenation, were held sufficient to support a Post Office Department fraud order. I conclude therefore that the fraud order in the case at bar finds ample support in the evidence presented in the administrative proceedings. The order to show cause of November 2, 1959 will be discharged and summary judgment may be entered in favor of the defendant, dismissing the complaint.
An appropriate order may be presented in conformity with the views herein expressed.
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